1.1 In this Master Agreement
1.1.1 Clause headings are for convenience only and are not to be used in its interpretation;
1.1.2 An expression which denotes
188.8.131.52 any gender includes the other genders;
184.108.40.206 a natural person includes a juristic person and vice versa; and
220.127.116.11 the singular includes the plural and vice versa.
1.2 In this Agreement, unless the context indicates a contrary intention, the following words and expressions bear the meaning assigned to them and cognate expressions bear the following meanings –
1.2.1 “Activate means” Activate a company incorporated according to the laws of the Republic of South Africa;
1.2.2 “Activation” means the enabling of a service at Activate’s, or a Service Provider contracted to Activate, premises to operate on one or more networks;
1.2.3 “Addendum” means a supplementary agreement signed by both Activate and the Customer in respect of additional Equipment and Services;
1.2.4 “Annexure “means any of the following Annexures, as the case may be:
18.104.22.168 the Equipment Sale Annexure annexed hereto which sets out the additional terms and conditions upon which Equipment is sold by Activate to the in terms of this Agreement;
22.214.171.124 the Rental Agreement Annexure annexed hereto which sets out the additional terms and conditions upon which Equipment is rented by Activate to the Customer in terms of this Agreement;
126.96.36.199 the SLA Annexure which sets out the additional terms and conditions upon which the Managed Services are provided by Activate to the Customer in terms of this Agreement;
Annexed to these General terms and Conditions;
1.2.5 “Agreement” means the General Terms and Conditions, the Annexures, the Schedules including a Proposal to an Annexure which set out the specific products and/or Services and all Addenda, if applicable, concluded by the Activate and the Customer and executed in terms hereof;
1.2.6 “Charges” or “Rates” means the installation charges, monthly service charges, usage charges and any other charges pertaining to the provision of Services by Activate to the Customer;
1.2.7 “Commissioned date” means the date on which the Services are operational;
1.2.8 “Cover Page” means the first page of this Master Agreement on which information relating to the Parties and other information essential to this Agreement is recorded;
1.2.9 “CPA” means the Consumer Protection Act, 2008;
1.2.10 “CPA Regulations” means regulations promulgated pursuant to the CPA from time to time;
1.2.11 “Customer“ means any person who has entered into an agreement with Activate for:
188.8.131.52 the purchase of any Equipment upon the terms and conditions set out in the Equipment Sale Annexure;
184.108.40.206 the Rental or use of any Equipment upon the terms and conditions set out in the Rental Agreement Annexure;
220.127.116.11 the provision of Managed Services upon the terms and conditions set out in the SLA Annexure;
1.2.12 “ECA” means the Electronic Communications Act, 2005;
1.2.13 ”Effective Date” means the date set out in the Cover Page or any Addendum to this Master Agreement on which an agreement, concluded in terms of this Master Agreement, commences;
1.2.14 “Equipment” means all Equipment, devices or goods including software provided by Activate to the Customer as identified in a Schedule, Proposal or Addendum which are
18.104.22.168 sold or rented; or
22.214.171.124 supplied to enable Activate to provide Services as the case may be;
1.2.15 “Equipment Sale Agreement” means a sale agreement entered into between Activate and the Customer in terms of which Activates sells Equipment to the Customer upon the terms and conditions set out in the Equipment Sale Agreement Annexure;
1.2.16 “Equipment Sale Agreement Annexure” means the Equipment Sale Agreement terms and conditions annexed hereto as Annexure 1 which sets out the additional terms and conditions upon which Equipment is rented by Activate to the Customer in terms of this Agreement;
1.2.17 “General Terms and Conditions” means this document excluding all Annexures, Schedules, Proposals and Addenda executed in terms hereof;
1.2.18 “ICASA” means the Independent Communications Authority of South Africa;
1.2.19 “Initial Period” means:
126.96.36.199 the initial rental period in respect of which Equipment is rented by Activate to the Customer as set out on the Cover Page to this Agreement, in the relevant Schedule, or Schedule to an Addendum, of the Rental Agreement Annexure;
188.8.131.52 the initial duration in respect of the Managed Services or Non-Managed Services are supplied as set out in this Master Agreement in the relevant Schedule, or Schedule to an Addendum, to t the SLA Annexure, as the case may be;
which period shall commence on the Commissioned Date;
1.2.20 “Initial Services” means the Services provided for an Initial Period by to the Customer as per the Cover Page, this Master Agreement or as set out in a Schedule relevant to the renting of Equipment of the provision of Services;
1.2.21 “Installation” means the installation of Equipment at the Customer’s premises or at such other location as may be specified by the Customer;
1.2.22 “Managed Services” means the on-going management and provision of Services by Activate in return for a monthly payment by the Customer as set out in a Schedule, or Schedule to an Addendum, of the SLA Annexure;
1.2.23 ”Master Agreement” means the General Terms and Conditions which are set out in this document;
1.2.24 “month” shall mean a calendar month commencing on the first day of each calendar month;
1.2.25 “Monthly Service Charge” means the monthly fees levied by Activate in consideration for the Customer’s access to and use of the network services or other services provided by Activate set out in a Schedule, or Schedule to an Addendum, of the Service Agreement Annexure or the SLA Annexure, as the case may be;
1.2.26 “NCA” means the National Credit Act, 2005;
1.2.27 “Network Provider” means any authorised supplier of telecommunications facilities;
1.2.28 “network services” means any services provided by any of the networks including but not limited to fixed line operators, cellular operators, wireless operators or any other operator that provides access and network services (including value added service;
1.2.29 “Non-Managed Service” means a service provided to the Customer which does not require the conclusion of an SLA between the Parties and which are governed by the terms and conditions of this Master Agreement;
1.2.30 “prime rate” means the prime overdraft lending rate charged by Activate’ s bank as certified, in the event of a dispute, by any manager of such bank whose appointment and authority it shall not be necessary to prove and whose decision shall be final and binding;
1.2.31 “Product” means any combination of Equipment and Services provided by Activate to the Customer;
1.2.32 “Proposal” means the order form or proposal document submitted by Activate to the Customer and signed by the Customer in respect of sale or renting of Equipment, and/or provision of Services and which may be incorporated into a Schedule;
1.2.33 “Rental Agreement” means a rental agreement entered into between Activate and the Customer in terms of which Activates rents Equipment to the Customer upon the terms and conditions set out in the Rental Agreement Annexure;
1.2.34 “Rental Agreement Annexure” means the Rental Agreement terms and conditions annexed hereto as Annexure 2 which set out the additional terms and conditions upon which Equipment is rented by Activate to the Customer in terms of this Agreement;
1.2.35 “Republic” means the Republic of South Africa;
1.2.36 “RICA” means the Regulation of Interception of Communications and Provision of Communication related Information Act,2002, as amended;
1.2.37 “Services” means the Services, Managed or Non-Managed, and/or products provided by Activate to the Customer as set out in the Proposal or Schedule or both;
1.2.38 “Service Provider” means any Electronic Communications Networks Licensee or Electronics Communications Licensee licensed under the ECA or any service provider of an Electronic Communications Networks Licensee or Electronics Communications Licensee;
1.2.39 “SLA” means a service level agreement entered into between Activate and the Customer in terms of which Activates provides Services to the Customer upon the terms and conditions set out in the SLA Annexure;
1.2.40 “SLA Annexure” means the SLA terms and conditions annexed hereto as Annexure 3 which set out the additional terms and conditions upon which Services are provided by Activate to the Customer in terms of this Agreement;
1.2.41 “software” means any computer programme that is either embedded or provided as a stand-alone application, or accessed via the internet or other web browsing method;
1.2.42 “traffic type” means any specific type of calls carried by Activate over the networks;
1.2.43 “Training” means the training granted to employees of the Customer in terms of an SLA
1.2.44 “usage charges” means the charges charged by Activate to the Customer for recorded usage of the network services;
1.2.45 “VAT” means Value Added Tax as defined In the Value Added Tax Act, 1991, as amended from time to time;
1.3 Any substantive provision, conferring rights or imposing obligations on a Party and appearing in any of the definitions of this clause 1 or elsewhere in this Agreement, shall be given effect to as if it were a substantive provision in the body of this Agreement.
1.4 Words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this Agreement.
1.5 Defined terms appearing in this Agreement in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning.
1.6 The terms “holding company” and “subsidiary” shall bear the meanings assigned thereto in the Companies Act, 2011.
1.7 References to “days” shall be construed as calendar days unless qualified by the word “business”, in which instant a “business day” will be any day other than a Saturday, Sunday or public holiday as gazetted by the Government of the Republic of South Africa from time to time. A reference to “business hours” shall be construed as being the hours between 08H30 and 17H00 on any business day. Any reference to time shall be based upon South African Standard Time.
1.8 Unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or where the last day falls on a day which is not a business day, the next succeeding business day.
1.9 Where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention.
1.10 No provision herein shall be construed against or interpreted to the disadvantage of a Party by reason of such Party having or being deemed to have constructed, drafted, structured or introduced such provision.
1.11 The Parties, unless specifically otherwise provided, shall be deemed to be contracting as principals and not as agents.
1.12 The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
1.13 The words “include” and “including” mean “include without limitation” and “including without limitation”. The use of the words “includes” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it.
1.14 Any reference in this Agreement to “this Agreement” shall be construed as a reference to this Master Agreement, its Annexures applicable to the contacts concluded in respect of applicable Equipment and Services, any schedule and/or proposal to this Master Agreement or any Annexure hereto, as the case may be, or such other agreement or document, as amended, varied, novated or supplemented from time to time.
1.15 In this Agreement, the words “clause” or “clauses” refer to clauses of this Agreement.
2. MASTER AGREEMENT
2.1 The Customer agrees that this is a Master Agreement.
2.2 These General Terms and Conditions terms shall apply to:
2.2.1 an Annexure which sets out the specific terms and conditions applicable to the type of contract concluded in relation to, the Equipment or Services or Product, the Credit Application Form and the Deed of Suretyship as the case may be;
2.2.2 all schedules and proposals incorporated, annexed or associated with or to any Annexure;
2.2.3 any Addendum created in terms of 2.3.
2.3 Should the parties agree that Activate shall provide additional Equipment, Services or Product to the Customer an Addendum shall create a separate agreement relating to the Equipment Services or Product set out in that Addendum. The Addendum shall:
2.3.1 set out whether the Equipment is sold or rented or whether the Services are Managed Services or Non-Managed Services in terms of the applicable Annexure;
2.3.2 include a Schedule and/or Proposal identifying the identity of the Equipment and the nature of the Services;
as the case may be
2.4 These General terms and conditions (and the relevant Annexure to these General Terms and Conditions applicable to the type of the contract concluded) shall apply to the Addendum, The Customer agrees that should any separate agreement which has been created in terms of clause 2.3, be terminated by Activate in terms of that agreement or by any cause whatsoever and howsoever arising, the Customer will continue to fulfil the Customer’s obligations to Activate in respect of any separate agreement created under any other Addenda in terms hereof and the terms of this Agreement will remain in force in respect of such separate agreement so created.
2.5 These General Terms and Conditions and the terms and conditions set out in the applicable Annexure in respect of any Services, Equipment, Credit or Security provided, rented or sold constitute the terms and conditions of contract between Activate and the Customer and all prior negotiations, proposals and writings pertaining to the this/these transaction(s) or the subject matter thereof, are hereby superseded. Any reference to or term in the Customer’s request, purchase order or terms and conditions of business are excluded unless expressly stated otherwise by Activate in writing in terms of a document attached hereto.
3.1 The term of this Master Agreement shall be indefinite and shall remain binding on the Parties for as long as there are any agreements in force between the Parties in relation to any Services or Equipment in terms of any Annexure or Addendum. Notwithstanding the fact that there may be a period of time that there is no contract in place between the parties at any particular point in time, this Master Agreement shall automatically reapply should Activate provide Services or Equipment to the Customer again.
3.2 The term of any Agreement between Activate and the Customer shall be governed by the provisions set out in the relevant Annexure applicable to that Service or Equipment, read in conjunction with this Master Agreement provided that any
4.1 The Customer shall use any software provided to it by Activate, only for the purposes for which it is intended and licensed in terms of this Agreement.
4.2 The Customer shall not nor permit anyone else to reverse engineer, decompile, modify, tamper with, vary, enhance, copy, sell, lease, license, sub-license or otherwise deal with the software or any part, variation, modification, release or enhancement thereof or have any software or any program written or developed for it based on the software.
4.3 All rights of whatever nature in and to the software and all upgrades, updates, modifications and variations thereto from time to time, shall vest in Activate. and no rights in and to the software, its upgrades, updates, modifications and variations thereto are granted or assigned to the Customer. The Customer shall not, at any time in any way, question or dispute the ownership of the software and undertakes not to infringe or prejudice any rights of Activate in and to the software.
4.4 Activate shall upgrade any software provided to the Customer at its sole discretion and shall not be obliged to perform such upgrades at any time unless a specific provision has been included in the agreement requiring that Activate performs such upgrade.
4.5 It is the Customer’s responsibility to notify Activate of its requirement to renew software licences.
5. INTELLECTUAL PROPERTY RIGHT
5.1 All intellectual property rights in or related to Software, Services and Equipment, including but not limited to any improvements thereof as well as any innovations or other intellectual property rights related to Software, Services and Equipment, shall at all times remain vested in Activate or its licensors. The Customer hereby assigns all of its right, title and interest to any innovations related to Software, Services or Equipment, intellectual property rights therein, to Activate, The Customer agrees that any GEHC intellectual property or any improvements thereto which are used, improved, modified or further developed solely by either of the Parties or the Parties jointly during the performance of this Agreement, shall be and remain the property of Activate.
5.2 The Customer may only use processes, know-how, drawings and other technical documentation, supplied by Activate orally, in writing or on electronic media, in connection with the Software, Services or Equipment and any user licenses granted to the Customer under this Agreement shall be non-transferable and non-exclusive and shall only be used for the Customer’s own internal purposes of operating the Products. Such information shall be kept confidential in terms of clause 17 below. Any license shall terminate automatically on the termination or expiry of this Agreement for whatever reasons.
5.3 Where the Customer supplies designs, drawings, documentation and specifications to Activate to enable to undertake its obligations in terms of this Agreement the Customer warrants that such designs, drawings, documentation and specifications will not infringe the intellectual property rights of any third party.
Any price, rental or other cost quoted in writing by Activate for any of the Services or Equipment shall, unless otherwise agreed in writing by Activate, be valid for a period of 30 days from the date of the quotation unless otherwise determined in writing by Activate. excise, import or customs duty or other tax, tariff or assessment.
7. CHANGE ORDERS
If the Customer wishes to change an order for Services and/or Equipment the request to do so must be in writing provided that no change shall be made pursuant to this clause unless agreed to in writing and signed by duly authorized representatives of Activate and the Customer. If any such change causes an increase or decrease in the cost of the Service or Equipment or the time required for the performance of any part of any work or installation, Activate may make a reasonable adjustment shall to the schedule of works, the price or rental for such Service or Equipment as the case may be. Activate shall have no obligation to make any change to the Services or Equipment or any work it has to undertake in relation thereto without written agreement as to adjustments to contract price, rental and delivery or work schedules, as the case may be.
Unless credit facilities are granted to the Customer in terms of clause 9 or as otherwise agreed to by Activate in writing, the Customer shall make payment to Activate, in full, free of bank charges, on presentation of Activates invoice.
8.1 The following forms of payment may be used:
8.1.1 Electronic Funds Transfer; or
8.1.2 Credit and debit card; or
8.1.3 Cheque subject to a maximum of R 10 000 (ten thousand rand) per individual cheque (and acceptance is subject to cheque acceptance provisos in clause 8.3); or
8.2 Cheque acceptance provisos:
8.2.1 No third-party cheques will be accepted;
8.2.2 Post-dated cheques will not be accepted as payment unless prior arrangements have been made with Activate’s Credit Manager;
8.2.3 For amounts above R10 000 (ten thousand rand) the cheque must be bank guaranteed, unless prior arrangements have been made with Activate, failing which the cheque will require a 7 (seven) working day clearance period (which excludes Saturdays and Sundays);
8.2.4 The Customer, waives its right to insist on notice of dishonour or protests being given to it in the event that the cheque is dishonoured.
8.3 In all cases where the Customer uses a postal banking, electronic or similar service to effect payment, such services shall be deemed to be the agent of the Customer.
8.4 The Customer agrees to pay the amount reflected on Activate’ s invoice and shall not be entitled to claim set off or deduction in respect of any payment due by the Customer to Activate Equipment for supplied or Services rendered.
8.5 Activate may appropriate and/or allocate all payments made by the Customer to such accounts as Activate, in its sole and absolute discretion, decides.
8.6 In terms of the provisions of clause 11.2 below, should any amount not be paid by the Customer on due date, then the whole amount in respect of all purchases by the Customer shall immediately become due, owing and payable irrespective of the date when the Products were purchased, and the Customer shall be liable to pay interest in respect of the amount unpaid at the due date at a compound rate of 5% above the prime rate.
8.7 In the event that any agreement between the Customer and Activate is governed by the NCA, then the interest payable by the Customer shall be the interest rate provided for in the NCA.
8.8 Unless the Customer notifies Activate in writing within 3 days of receipt of an invoice to the contrary, the contents of such invoice shall be deemed to be correct.
8.9 All amounts payable by the Customer to Activate in terms of this agreement are exclusive of VAT and any other statutory levies, taxes and imposts, excise, import or customs duty, tariff or assessment as may be levied thereon from time to time. The Customer shall accordingly be liable for VAT and all rates, taxes, government or statutory levies as may be imposed from time to time.
8.10 Notwithstanding the provisions of clause 8.2, Activate shall be entitled to insist that all amounts payable by the Customer are made through a debit order on the terms and conditions stated in the relevant Schedule or Proposal and the Customer shall be obliged to execute and deliver such further instruments, contracts, forms and other documents (“additional documentation”) or perform such further acts as may be required by Activate for the purposes of securing such debit order/s in favour of Activate, copies of which additional documentation shall have been made available to the Customer by Activate in order to give effect to the debit order.
8.11 In terms of the debit order, the Customer is aware of non-refundable setup fee, outright purchases and pro-rata amounts applicable to the services applied for, and accepts that these amounts will be debited from their account immediately when the service is activated.
8.12 Any cancellation of such a debit order without the prior written consent of Activate shall constitute a breach by the Customer of this agreement.
8.13 A certificate by a director of Activate as to the amount owing by the Customer to Activate at any time shall be sufficient proof thereof for provisional sentence or summary judgment.
9.1 Unless a credit facility is granted to the Customer in terms of this clause 9 all payments due to Activate shall be paid as set out in clause 8.1
9.2 The granting of credit in terms of this clause shall not be a relaxation or waiver of the period within which an instalment due under any, Equipment Sale Agreement, Rental agreement or SLA, all of which shall be paid in terms of the provisions of clause 8.1.
9.3 Should a Customer wish to make a payment with a longer payment term than that set out in clause 8.1 the Customer shall make an application for credit upon and in terms of the Credit Application Form set out in Annexure 4.No claim by a Customer that Activate or any of its agents or employees agreed to the provision of credit shall be valid and accepted by Activate unless it is completed upon and in terms of the Activate Credit Application Form and duly authorised by Activate’s head of administration or a person authorised by him/her to grant credit.
9.4 The Customer hereby acknowledges that upon the signature of an application for credit it also agrees to be bound by the terms of this Master Agreement.
9.5 Activate reserves the right to withdraw any credit facilities at any time without prior written notice, and the nature and extent of such facilities shall at all times be in Activate’s sole discretion.
9.6 Activate shall be entitled in its sole discretion to require that the Customer provide security in the amount or form which Activate determines in respect of any credit facility.
9.7 Interest at 5% above the prime overdraft lending rate from time to time of Activate’s bankers, compounded monthly in arrears, shall accrue on the outstanding, unpaid balance on all amounts owing by the Customer to Activate from time to time.
9.8 The Customer understands that the personal information given in the Credit Application Form may to be used by Activate for purposes of assessing the creditworthiness of the Customer. The Customer confirms that the information given is accurate and complete. The Customer further agrees to update the information supplied, in order to ensure the accuracy and completeness of the information given, failing which Activate will not be liable as a result of any inaccuracies or lack of completeness of the information.
9.9 Activate has the Customer’s consent at all times to contact and request information from any persons, credit bureaus or business, including those mentioned in the Credit Application Form and to obtain any information relevant to the Customer’s credit assessment, including but not limited to, information regarding amounts purchased from the suppliers per month, length of time the Customer has dealt with such supplier or suppliers types of Equipment or services purchased and manner and time of payment.
9.10 The Customer hereby consents to and authorises Activate at all times to furnish credit information concerning the Customer’s dealings with Activate to a credit bureau and to any third party seeking a trade reference regarding the Customer in his dealings with Activate.
10.1 Activate reserves the right to require that the Customer, the Customer’s shareholders, and/or directors or partners or a third-party grant Activate such security as Activate deems necessary before entering into, or extending the term of, any agreement with the Customer.
10.2 Without derogating from the generality of the aforegoing, Activate shall be entitled to require that the Shareholders, directors, partners or any other party Activates considers necessary stand surety for the Customer by concluding the Deed of Suretyship set out in Annexure.4.
10.3 Prior to:
10.3.1 providing any Services in terms of an SLA Agreement or non- managed services in terms of this Agreement; and/or
10.3.2 the Customer taking possession of any Equipment in terms of any Rental Agreement, Equipment Sale Agreement, SLA or for non-managed Services in terms of this Agreement, as the case may be:
Activate shall be entitled to require of the Customer to deposit with Activate, in trust, a deposit, (set out in the Schedule or proposals incorporated, annexed or associated the relevant agreement); as security for the performance by the Customer of its obligations in terms of this Agreement or any other agreement concluded in terms of this Agreement.
11. DEFAULT AND TERMINATION
11.1 Save where otherwise provided for in the proposal or elsewhere herein, should either party (“the defaulting party”) –
11.1.1 fail to pay any amount payable under this agreement within 7 days after receipt of written demand requiring such payment;
11.1.2 commit a breach of any of the provisions of this Master Agreement and/or any other agreement which has been entered into in terms of or subject to this Master Agreement, if such breach is capable of remedy, fail to remedy such breach within 7 (seven) days after receipt of written demand from the other party requiring it to do so;
11.1.3 becomes the subject of business rescue proceedings, is placed under liquidation, judicial management or any similar disability, whether provisionally or finally and whether voluntarily or compulsorily;
11.1.4 commit any act which if committed by a natural person would constitute an act of insolvency or become insolvent;
11.1.5 compromise or attempt to compromise generally with any of its creditors;
11.1.6 have a final judgment taken against it which is not satisfied within 30 days after the granting of such judgment,
then the other party (“the aggrieved party”) shall be entitled, without prejudice to any of its other rights under this agreement and/or in law and by giving written notice, to immediately cancel this agreement or to claim immediate specific performance of all the defaulting party’s obligations whether or not due for performance, in either event without prejudice to the aggrieved party’s right to claim damages.
11.2 For the avoidance of doubt, should the Customer through any act or omission be in breach of or default under any agreement which has been entered into in terms of or subject to this Master Agreement, then Activate shall be entitled, without prejudice to any of its other rights under those agreements and this Master Agreement and by giving written notice to:
11.2.1 sue for and recover all rentals, payments for Services and payments for the purchase of Equipment as the case may, and other payments, then due and which would accrue thereafter under all of those agreements;
11.2.2 take possession of all Equipment, without demand or notice, wherever the Equipment is located, which at that time is, rented to, sold to the Customer but still owned by Activate in terms of any Equipment Sale, Services Agreement or SLA, as the case may, be without any court order or other process of law. The Lessee hereby waives any and all damages occasioned by such taking of possession;
11.2.3 terminate this Master Agreement and all other agreements concluded in terms of this Master Agreement;
11.2.4 charge interest at the prime rate plus 5% per annum on amounts due under this Master Agreement and all agreements concluded in terms of this Master Agreement.
12. TERMS APPLICABLE TO SERVICES
12.1 Activate undertakes to supply the services to the Customer subject to the succeeding terms of this agreement, for the duration of the initial period; provided that in the event that the initial services do not become commissioned as a result of the actions or omissions of the Customer, Activate shall have the right to recover from the Customer, the minimum monthly charge stipulated in the proposal (or pro rata portion thereof) payable by the Customer for the period of the delay together with any reasonable wasted costs incurred by Activate and Customer hereby indemnifies Activate accordingly.
12.2 If the Customer is a juristic person, at the expiry of the initial period, unless otherwise notified in writing to the Customer, the services and the agreement shall continue automatically on the terms contained in this agreement for an unlimited number of renewal periods, unless terminated by the Customer, on expiration of the initial period or a renewal period, as the case may be, by giving Activate a written notice of termination not less than 30 and not more than 90 days before the expiration of the initial period or renewal period, as the case may be.
12.3 If the Customer is a natural person the Customer may terminate the agreement:
12.3.1 on the expiry of the initial period, on written notice to Activate;
12.3.2 during the initial period, on 20 business days’ written notice to Activate, subject, however, to the provisions of clause 12.6;
12.4 Activate may, during the initial period, terminate the agreement 20 business days’ after giving the Customer written notice to remedy a material breach and the Customer failing to remedy such breach within such period.
12.5 If the agreement is not terminated by either party in accordance with the aforegoing during the initial period, unless the Customer agrees to a renewal of the agreement for a further fixed term, the agreement will continue, after the initial period, on a month to month basis (terminable by either Activate or the Customer on one month’s written notice to the other), subject to any material changes of which Activate has given written notice pursuant to clause 12.3.4;
12.6 Not more than 80 nor less than 40 business days before the expiry of the initial period, Activate shall notify the Customer in writing of the impending expiry of the agreement, which notice will include any material changes that would apply if the agreement were to be renewed and the Customer’s right to terminate or continue with the agreement on the expiry of the initial period.
12.7 Notwithstanding the aforegoing, during any automatic renewal period the discounts applicable to the services provided for in the agreement shall not be available to the Customer until the Customer concludes a new written agreement with Activate in respect of the services provided by Activate for the term of the renewal period.
12.8 Unless the CPA applies to this agreement, Activate shall furthermore be entitled to terminate this agreement at any time by giving 3 months’ written notice to this effect to the Customer. Should the provision of any of the products or services by Activate on the basis provided for in this agreement be finally declared illegal by an Act of Parliament, any regulatory body or court of law, Activate shall be entitled to cancel this agreement on written notice to the Customer.
12.9 Should the Customer terminate this agreement prior to the expiry of the initial period or any renewal period for any reason other than expressly provided for in this agreement, the Customer shall remain liable for all amounts owing to Activate up until the date of termination and Activate shall be entitled (unless the Customer is entitled to terminate the agreement without penalty in accordance with the provisions of the CPA, if applicable) to levy a cancellation/early settlement fee provided for in the proposal, provided that where the Customer is a natural person, such cancellation fee shall be limited to a reasonable fee determined in accordance with the guidelines set out in the CPA and, if applicable, the CPA Regulations.
12.10 Unless otherwise expressly stated in the agreement, upon expiry of the initial period or any renewal period, Activate, in its sole discretion, but subject to clause 12.3.4, may remove or change any discounts that were applicable during the initial period or renewal period, as the case may be.
12.11 Any new or additional services or expansion of the initial services to be provided by Activate to the Customer from time to time shall be subject to the terms contained in the proposal or required to be agreed upon by the parties in writing in a new agreement (or in an addendum to the existing proposal) and such new services shall commence on the date on which such new services are commissioned.
12.12 Activate may in its sole and absolute discretion alter the routing of any traffic at any time in pursuit of the provision of services, such routing changes having no effect on the validity of the agreement.
12.13 The services provided by Activate are subject to government or relevant authority regulated limitations and transmission limitations, and may be temporarily and/or permanently interrupted or curtailed as necessary or appropriate for the proper operation of the services.
12.14 If the conclusion of the agreement is the result of direct marketing and the provisions of the CPA are applicable hereto, the Customer has the right to cancel the agreement without reason or penalty by written notice to Activate within 5 business days after the later of the date on which the agreement was concluded or the services or Equipment were delivered to the Customer. Should the Customer have opened the original packaging of the products prior to returning same to Activate on cancellation of this agreement, Activate shall be entitled to deduct from any reimbursement or refund which may be payable to the Customer on cancellation, a reasonable amount for the use and/or depletion of the products.
12.15 Activate shall provide the services to the customer at the address nominated by the customer on the Cover Page unless another address is set out in writing in a schedule to this Master Agreement.
12.16 The customer shall, at its own cost and expense, be responsible for:
12.16.1 ensuring that the all relevant services and facilities, including without limitation, telephone facilities and lines, installation area/s, electrical outlets and connection are suitable for the provision of the Services for as long as the Services are provided by Activate;
12.16.2 obtaining all necessary approvals and authorities imposed by any competent authority and required for the purpose of the provision of the Services, The customer hereby indemnifies Activate against any claim or liability suffered by Activate arising out of any violation of any required approval or authority.
12.17 The customer acknowledges that the Activate may establish general practices and limits concerning the use of the Services including traffic type (which it shall be entitled to modify from time to time in accordance with prevailing standards).
12.18 Activate shall be entitled on written notice to the customer to terminate the provision of the Services should the customer fail to use the Services for a continuous period exceeding 12 months, or on termination of the agreement applicable to the Services.
12.19 Activate may upon 5 days’ written notice to the customer, suspend the customer’s use of the Services in the event that:
12.19.1 any modification, maintenance or remedial work is required to be undertaken relating to the Services; and/or
12.19.2 the customer fails to perform any of its obligations or breaches any term/s of this agreement; and/or
12.19.3 the customer at any time exceeds the credit or use limit which Activate in its absolute discretion, sets from time to time for the Services.
12.20 Activate may require the customer to pay any reconnection charges arising out of the restoration of the Services suspended in terms of Clause 12.16.
12.21 The customer remains liable for the charges or fees payable by it in terms of this Agreement during any period of suspension in in terms of clause 12.16.
13. TERMS APPLICABLE TO THE EQUIPMENT
13.1 Ownership in and to all Equipment:
13.1.1 rented in terms of any Rental Agreement, or
13.1.2 provided, but not sold, in terms of any Service Agreement or SLA; or
13.1.3 sold to the Customer while giving effect to any Service Agreement or SLA;
13.1.4 sold in terms of any Equipment Sale Agreement by way of instalment or for which credit has been granted and is still outstanding
13.1.5 remain vested in Activate in relation to clauses 13.1.1 and/or 13.1.2 throughout the Rental Agreement, Service Agreement or SLA as the case may be and shall not pass to the Customer;
13.1.6 in relation to clauses 13.1.3 and 13.1.4, remain vested in Activate and only pass to the Customer on the date which the Customer has paid the full purchase price thereof in terms of any Service Agreement, SLA or Equipment Sale Agreement notwithstanding the fact that the Equipment may have been sold to the Customer as instalment sale or on other credit terms.
13.2 For as long as the Equipment vests Activate:
13.2.1 The Customer undertakes to use the Equipment only for the purpose for which it is intended and to ensure that its employees, agents and/or sub-contractors comply with the instructions and recommendations of Activate;
13.2.2 Upon delivery or collection of the Equipment as the case may be, risk in the Equipment shall pass to the Customer;
13.2.3 The Customer shall then be responsible for keeping the Equipment in its possession and control, protected against loss and damage from whatsoever cause;
13.2.4 The Customer shall be responsible for providing clean power to the Equipment;
13.2.5 The Customer shall exercise due care and diligence in respect of the Equipment;
13.2.6 The Customer shall protect all Equipment against any form of lightning by means of installing a lightning protection, unless expressly provided by Activate to the Customer;
13.2.7 The Customer furthermore agrees to ensure that the Equipment is maintained in clean, serviceable and good working order. Upon the expiry of this agreement, where required the Customer shall return all Equipment in good working order and in the same condition as at the date of installation, fair wear and tear excepted; and
13.2.8 The Customer agrees that any Equipment supplied by Activate and/ or its service providers pursuant to this agreement is movable property and that notwithstanding any installation thereof at the Customer’s premises, unless the Customer has purchased the Equipment under the Equipment Sale provisions and has paid in full for such Equipment, the Equipment shall at all times remain the property of Activate and/ or its service providers, as the case may be, who shall have the right to inspect the Equipment at all reasonable times during the currency of this agreement and to remove the Equipment on termination of the agreement for any reason. Accordingly, the Customer undertakes forthwith upon the installation of the Equipment, to notify the landlord of the premises where the Equipment is to be installed of Activate’s and/ or its service provider’s ownership of the Equipment.
13.2.9 The Customer shall provide:
184.108.40.206 Activate with access to its premises, the Equipment, software, telephone ports and/or network for the purposes of monitoring and correcting the Equipment and/or software and monitoring the performance of the Customer’s obligations hereunder;
220.127.116.11 Activate with plans, organograms, structural, architectural and block diagrams, user lists, company procedures and any other form of information that Activate deems necessary for the proper installation of the Equipment or provision of the Services;
18.104.22.168 its own security procedures to ensure the integrity of its systems, it being specifically recorded that, that Activate shall not be liable for any loss suffered by the Customer attributable to loss of integrity of its systems unless such loss is directly attributable to the gross negligence or fraud of Activate.
13.2.10 In respect of any Equipment provided to the Customer by Activate under an SLA at Activate’ s cost and in respect of Equipment provided by Activate to the Customer at Activates cost, where such Equipment is covered by Activate’ s insurance:
22.214.171.124 the Customer undertakes to comply fully with the terms and conditions of the insurance cover procured by Activate, for all the Equipment supplied to it by Activate;
126.96.36.199 if the Equipment or any part thereof is lost, stolen or damaged for any reason whatsoever and howsoever arising, the Customer shall immediately notify Activate in writing of such loss, theft or damage.
13.2.11 In the case of Equipment that is damaged, and until such notification has been received by Activate, the Customer shall remain fully liable for all costs and charges pertaining to such Equipment and to the Services.
13.2.12 Activate shall, as soon as reasonably possible after receipt of written notification of such theft, loss or damage for Equipment supplied under an SLA:
188.8.131.52 repair or replace Equipment (other than Equipment that has not been supplied by Activate, the repair and/or replacement of which shall be for the Customer’s entire responsibility);
184.108.40.206 bear the costs of such repair or replacement except where such repair or replacement is necessary as a result of an accident or force majeure event or through improper, malicious or negligent use by the Customer of the Equipment or use in breach of the terms and conditions hereof. Activate shall in its sole discretion, using reasonable testing methods, determine whether such Equipment has been subjected to improper, malicious or negligent use.
13.2.13 The Customer shall be obliged to ensure that the Equipment and all components thereof at all times remain at the site of installation thereof. Should the Customer wish to relocate any fixed or movable component(s) of the Equipment to alternative premises, the Customer shall be precluded from doing so unless it has made written application on 2 months’ notice to Activate to such effect and Activate has approved such relocation in writing. The Customer will be charged for any site relocation requirement (whether within the Customer’s existing premises or to alternative premises) at the relevant rates stipulated by Activate and/or its service providers at the time of such site re-location.
13.2.14 Activate may at any time re-configure upgrade, and/or exchange any Equipment at its sole and absolute discretion, to meet its obligations required to provide the Services. Activate shall not be obliged to make any other upgrades or improvements unless it determines to do so in its sole and absolute discretion.
13.2.15 The Customer shall not itself be entitled to nor permit any other party to repair, maintain, modify, alter or add to the Equipment in any manner whatsoever without Activate’s prior written consent.
13.2.16 Unless the prior written approval of Activate is obtained, the Customer shall ensure that only Equipment and Services marketed and sold by Activate may be installed on or connected to the Equipment. Any component or accessory affixed or addition made to the Equipment during the currency of this agreement shall become the property of Activate without reimbursement or compensation to the Customer.
13.2.17 The Customer shall keep the Equipment free from any judicial attachment, hypothec lien, charge or encumbrance and shall not encumber the Equipment.
13.2.18 The Customer shall give written notice to the landlord of the premises where the Equipment is ordinarily kept that the Equipment is the property of Activate. The Customer shall obtain from the Landlord the Waiver of Landlord’ Hypothec set out in Annexure 5 and supply the original to Activate within 30 days of the date of the delivery of any Equipment to the Customer which remains the property.
14.1 In respect of any Equipment the ownership of which vests in Activate in terms of clause 13.1, the Customer shall obtain at its own expense adequate insurance for the Equipment including:
14.1.1 insurance against loss by all risks of physical loss or damage by fire, theft or accident, in an amount equal to the full replacement value;
14.1.2 insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as Activate may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and howsoever arising in connection with the Equipment; and
14.1.3 insurance against such other or further risks relating to the Equipment as may be required by law, together with such insurance as Activate may from time to time consider reasonably necessary.
14.2 The Customer shall cede to Activate in securitatem debiti all its right, title and interest in the insurances referred to in in this clause forthwith upon being called upon to do so.
14.3 All insurance policies procured by the Customer shall be endorsed to provide Activate with at least twenty (20) Business Days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall upon Activate’s request name Activate on the policies as a loss payee in relation to any claim relating to the Equipment. The Customer shall be responsible for paying any excess due on any claims under such insurance policies.
14.4 The Customer shall, upon request of Activate, provide Activate with certificates of insurances evidencing the coverage required in terms of this clause.
14.5 The provision of any insurance required herein does not relieve the Customer of any responsibilities or obligations outlined in the Contract or for which the Customer may be liable by law or otherwise.
14.6 The Customer herby confirms that it has given written notice of The Customer’s right of free choice in relation to insuring the Equipment in terms of Section 43 (1) of the Short-Term Insurance Act, 1998 and that The Customer has exercised that freedom of choice and The Customer was not coerced or induced as to the manner in which The Customer exercised The Customer’s choice.
15. FORCE MAJEURE
15.1 Delay or failure to comply with or breach of any of the terms and conditions of this Agreement if occasioned by or resulting from an act of God or public enemy, fire, explosion, earthquake, perils of the sea, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strife, riot, strikes, blockade, embargo, sanctions, epidemics, act of any Government or other Authority, compliance with Government orders, demands or regulations, or any circumstances of like or different nature beyond the reasonable control of the Party so failing, will not be deemed to be a breach of this Agreement nor will it subject either Party to any liability to the other.
15.2 Should either Party be prevented from carrying out its contractual obligations by force majeure lasting continuously for a period of 30 (thirty) days the Parties will consult with each other regarding the future implementation of this Agreement. If no mutually acceptable arrangement is arrived at within a period of 7 (seven) days thereafter, either Party will be entitled to terminate this Agreement forthwith on written notice.
16. WARRANTIES, EXCLUSION AND LIMITATION OF LIABILITY
16.1 Activate shall use all reasonable endeavours to ensure that the Equipment supplied by it and/or its service providers is in accordance with the agreement and is otherwise correct in terms of the Customer’s requirements. Subject to any warranties that may be implied by the CPA to the extent that the CPA is applicable to the agreement, Activate does not, however, make any representations nor, unless expressly given in writing, give any warranty or guarantee of any nature whatsoever, whether express or implied, in respect of the Services or the Equipment including but not limited to implied warranties of merchantability and fitness or suitability for any intended purpose.
16.2 Subject to the provisions of the CPA to the extent that the CPA is applicable to the agreement, Activate shall not be liable to the Customer or any third party for any loss or damage which the Customer or such third party may suffer or incur as a consequence of utilising the Services and/or software and/or Equipment, irrespective of whether such loss or damage is direct, special, incidental, consequential or otherwise unless such loss or damage was directly attributable to the gross negligence or fraud of Activate.
16.3 Without limiting the generality of the aforegoing, Activate shall not (other than in circumstances of Activate’s gross negligence or fraud) be liable for any damage or loss suffered by the Customer nor shall the Customer be entitled to terminate this Agreement or withhold any payment arising out of or caused by and/or attributable to –
16.3.1 the Services being interrupted, suspended or terminated, for whatsoever reason; and/or
16.3.2 Activate or its supplier’s failure to suspend the provision of the Services to the Customer in terms of an arrangement between Activate and the Customer or after the Customer has specifically requested Activate to do so in order to limit the applicable charges; and/or
16.3.3 communications not being sent and/or received and/or transmitted timeously or at all for any reason whatsoever or in relation to any telephony or related service the call quality of the service being poor; and/or
16.3.4 circumstances that constitute a force majeure event; and/or
16.3.5 the Customer’s failure to perform its obligations under this agreement; and/or
16.3.6 changes made to the Customer’s operating environment which were not communicated to Activate; and/or
16.3.7 a power failure or power interruptions at any site from where any Equipment or the Services or any component of the Services are rendered; and/or
16.3.8 any failure or delay by the Customer to report problems or queries to Activate’s call centre; and/or
16.3.9 the server and/or Equipment of any recipient party being non-functioning for any reason whatsoever; and/or
16.3.10 the failure of any Equipment, hardware, software programme, operating system, application/s, networks, telecommunication lines and/or any other computer system (or any component thereof) of any third party on whom Activate, and/or the Customer relies (whether directly or indirectly) to supply and/or receive, as the case may be, the Services;
16.3.11 the unavailability of Activate‘s website or the website of any of Activate‘s suppliers for any reason whatever; and/or
16.3.12 the Customer using the service for any unlawful, improper or immoral purpose; and/or
16.3.13 the unlawful or fraudulent accessing by a third party of the Customer’s telecommunication lines, PBX or other telecommunication Equipment. In such circumstances, the Customer shall remain liable for all charges incurred pursuant to such unlawful or fraudulent access and hereby indemnifies Activate against all loss, liability, damage or expense which Activate may suffer as a result thereof.
16.4 Notwithstanding any other provisions of this agreement, Activate’s liability to the Customer and/or any third party for any damages or loss of whatsoever nature, including without limitation any damages or loss caused by the negligence (but excluding gross negligence) of Activate or the Customer, as the case may be, or that of its servants, agents and subcontractors, shall in any event and under all circumstances be limited to an amount equal to:
16.4.1 an abatement of any instalments still due to Activate at the time of such loss or damage; or
16.4.2 an abatement of any rental still due to Activate at the time of such loss or damage; or
16.4.3 the fixed monthly charges for the Services still due to Activate at the time of such loss or damage;
whichever is applicable in terms of any agreement concluded for the provision of Equipment or Services in terms of this Agreement.
16.4.4 The Customer shall, indemnify, and hold harmless Activate from and against any and all damages incurred or suffered by Activate arising, directly or indirectly, from any third-party claims related to: (i) the breach by the Customer of any of its covenants, agreements, representations, warranties or other obligations in this Agreement or (ii) fraud, gross negligence or intentional misconduct by the Customer or its representatives in connection with this Agreement. In addition, the Customer shall defend, indemnify, and hold harmless Activate, and its representatives, from and against any and all damages incurred or suffered Activate or its representatives arising, directly or indirectly, from:
220.127.116.11 any misuse or unintended use of the Software, Services or Equipment; and
18.104.22.168 any claim that the Customer’s use of Software, Services and Equipment infringes the intellectual property rights of any third party.
17. ASSIGNMENT AND SUB-CONTRACTING
17.1 The Customer may not assign any of its rights or obligations in terms of this agreement, nor pass any Equipment to any third party, nor allow any third party to use the Equipment, without Activate ‘s prior written consent.
17.2 Activate shall be entitled at any time during the currency of the agreement to cede and/or assign and/or sub-contract any or all of its rights and obligations in terms of the agreement to any other party provided that if the Customer is a consumer as contemplated in the CPA Regulations such assignment of obligations is not to the Customer’s detriment.
17.3 Subject to the restriction in clause 16.1 this agreement shall be binding on the successors-in-title of the respective parties.
18.1 The Parties undertake that during the operation of, and after the expiration, termination or cancellation of, this Agreement for any reason, they will keep confidential –
18.1.1 any information which any Party (“Disclosing Party”) communicates to any other Party (“Recipient”) and which is stated to be or by its nature is intended to be confidential; and
18.1.2 all other information of the same confidential nature concerning the business or the affairs of a Disclosing Party which comes to the knowledge of any Recipient whilst it is engaged in negotiating the terms of this Agreement or after its conclusion.
18.2 If a Recipient is uncertain about whether any information is to be treated as confidential in terms of this clause 17, it shall be obliged to treat it as such until written clearance is obtained from the Disclosing Party.
18.3 Each Party undertakes, subject to clause 17.4, not to disclose any information which is to be kept confidential in terms of this clause 17, nor to use such information for its own or anyone else’s benefit.
18.4 Notwithstanding the provisions of clause 17.3, a Recipient shall be entitled to disclose any information to be kept confidential if and to the extent only that the disclosure is bona fide and necessary for the purposes of carrying out its duties in terms of this Agreement.
18.5 The obligation of confidentiality placed on the Parties in terms of this clause 17 shall cease to apply to a Recipient in respect of any information which –
18.5.1 is or becomes generally available to the public other than by the negligence or default of the Recipient or by the breach of this Agreement by the Recipient;
18.5.2 the Disclosing Party confirms in writing is disclosed on a non-confidential basis;
18.5.3 has lawfully become known by or come into the possession of the Recipient on a non-confidential basis from a source other than the Disclosing Party having the legal right to disclose same; or
18.5.4 is disclosed pursuant to a requirement or request by operation of law, regulation or court order, to the extent of compliance with such requirement or request only and not for any other purpose,
provided that –
18.5.5 the onus shall at all times rest on the Recipient to establish that information falls within the exclusions set out in clauses 17.5.1 to 17.5.4;
18.5.6 information will not be deemed to be within the foregoing exclusions merely because such information is embraced by more general information in the public domain or in the Recipient’s possession; and
18.5.7 any combination of features will not be deemed to be within the foregoing exclusions merely because individual features are in the public domain or in the Recipient’s possession, but only if the combination itself and its principle of operation are in the public domain or in the Recipient’s possession.
18.6 In the event that the Recipient is required to disclose confidential information of the Disclosing Party as contemplated in clause 17.5.4, the Recipient will –
18.6.1 advise the Disclosing Party thereof in writing prior to disclosure, if possible;
18.6.2 take such steps to limit the disclosure to the minimum extent required to satisfy such requirement or request and to the extent that it lawfully and reasonably can;
18.6.3 afford the Disclosing Party a reasonable opportunity, if possible, to intervene in the proceedings;
18.6.4 comply with the Disclosing Party’s reasonable requests insofar as possible as to the manner and terms of any such disclosure; and
18.6.5 notify the Disclosing Party of the recipient of, and the form and extent of, any such disclosure or announcement as soon as practically possible after it is made.
19.1 Each Party represents and warrants that it has the authority necessary to enter into this Agreement and to do all things necessary to procure the fulfilment of its obligations in terms of this Agreement.
19.2 The signatory of the Customer warrants that he/she is authorised to sign on behalf of the Customer.
19.3 The Customer confirms that it has been given an adequate opportunity to read and has read and understood the agreement together with all Annexures hereto.
19.4 Where the physical installation of Equipment is required, the Customer warrants that it has obtained all the necessary consents from the landlord or landowner.
The Parties undertake to act in good faith towards each other and at all times to do all such things, perform all such actions and take all such steps and to procure the doing of all such steps as may be open to them and reasonably necessary for or incidental to the putting into effect or maintenance of the terms, conditions and/or import of this Agreement.
21. NOTICES AND DOMICILIUM
21.1 The Parties choose as their domicilia citandi et executandi for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature (including the exercise of any option), at addresses and contact details set out in the Credit Application Form.
21.2 Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing, but it shall be competent to give notice by email or telefax.
21.3 Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
22. APPLICABLE LAW AND JURISDICTION
22.1 This agreement shall be governed by the laws of the Republic.
22.2 The Customer, by its signature hereto consents to the jurisdiction of the Magistrate’s Courts in relation to any actions or proceedings instituted against the Customer in terms of, or arising out of the provisions of this agreement, provided that either party in its sole and absolute discretion shall be entitled to institute any such actions or proceedings, in any division of the High Court of South Africa possessed of the requisite jurisdiction.
22.3 In the event of either party instituting legal proceedings against the other (“defaulting party”) to recover amounts due to or take any other legal steps arising out of this agreement, the defaulting party shall be liable for legal costs on the scale as between attorney and own client.
23. ABUSE OF SERVICES
The Customer hereby warrants and undertakes in favour of Activate that the Customer –
23.1 shall not use nor allow the Services to be used for any improper, immoral or unlawful purpose, including, without limitation, attempting to utilise the Services to route (or assist another party to route) transit traffic from other networks to Activate, nor in any way which may cause injury or damage to persons or property or an impairment or interruption of the Services;
23.2 shall comply with all relevant legislation and regulations imposed by any competent authority and all directives issued by Activate relating to the Services including its Acceptable Use Policy available on Activate’s website, and hereby indemnifies Activate for any losses, expenses, damages, harm or amount for which Activate may become liable arising from or relating to the use of the Services in any manner whatsoever which violates the terms of this agreement, Activate’ s Acceptable Use Policy or any law, legislation or regulations; and/or any claims made by any third party arising from the Customer’s use of the Services unless such losses, expenses, damages, harm or liability were directly attributable to the gross negligence or fraudulent intent of Activate.
24.1 Activate undertakes not to disclose to any third-party details of the Customer’s name, address or any third party (“Customer details”) except as set out in this clause.
24.2 The Customer hereby authorises Activate to disclose Customer’s details to a third party wherever Activate deems this reasonably necessary to enable it to properly perform its functions or protect its interests (including, without limitation, for the purposes of credit vetting the Customer), for the purpose of enabling the provision of emergency services or directory or repair services to the Customer.
24.3 In addition, Activate may disclose the Customer’s details if required to do so to any regulatory authorities or any court of law.
25.1 This Agreement constitutes the whole of the Agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on any of the Parties.
25.2 No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of this Agreement will be of any force or effect unless in writing and signed by the Parties.
25.3 No waiver of any of the terms and conditions of this Agreement will be binding and effectual for any purpose unless in writing and signed by the Party giving the same. Any such waiver will be effective only in the specific instance and for the purpose given. Failure or delay on the part of any Party in exercising any right, power or privilege hereunder will not constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
25.4 All provisions and the various clauses of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of this Agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatsoever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non-scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect. The Parties declare that it is their intention that this Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.